MOHAMMAD AZAM KHAN, CJ. --- The captioned appeal by leave of the Court has been filed from the judgment of the High Court dated 12th December, 2011, whereby Writ Petition No. 135 ,of 2006 has been accepted and an opportunity has been provided to the respondent for producing in evidence the decisions of Commissioner, Mirpur Division, dated 30th August, 2003 and Collector District Bhimber dated 7th April, 2000, alongwith the certified copies of Jamabandi and Khasra- Gardawari subject to payment of Rs. 3000/- as costs.
2. Necessary facts for disposal of the appeal are that two suits: one by the appellants and the other by the respondents were pending ;n the Court of Senior Civil Judge, Bhimber. Atter conclusion of the evidence of the parties, the suits were at the stage of final arguments when Javed Iqbal nd others, respondents herein, moved an application for producing the copies of the decision of Commissioner dated 30th August, 2003, the decision of Collector, dated 7th April, 2000, copies of Jamabandi and Khasra-Girdawari in additional evidence. After seeking objections from the other side, the Trial Court dismissed the application vide order dated 12th May, 2005. Dissatisfied from the order of the Trial Court, Riaz Ahmed & others filed a revision petition in the Court of District Judge, Bhimber. The District Judge dismissed the revision petition on 7th March, 2006. The petitioners, respondents herein, then filed writ petition No. 135 on 20th June, 2006 in the Azad Jammu & Kashmir High Court. A learned single Judge in the High Court accepted the writ petition vide impugned judgment on 12th December, 2011 in the terms indicated above.
3. Mr. Muhammad Reaz Alam, Advocate, counsel for the appellants, argued that the judgment of the High Court is against law and not maintainable. The respondents moved an application at a stage when evidence of both the parties has already been concluded and the case was at the stage of hearing of final arguments. Under Order XLI, Rule 27 of Civil Procedure Code, the additional evidence cannot be allowed to fill up the lacunas of the case of a party. The additional evidence can only be allowed, if it is just and necessary for correct decision of the case. The applicants, respondents herein, failed to point out any reason for not placing the relevant evidence on record at earlier stage and in the revision petition no reason was assigned that as to how the order passed by the Trial Court is illegal. The learned counsel referred to the cases reported as Muhammad Nazir v. Abdul Rashid & others [1998 SCR 248] and Muhammad Siddique v. Abdul Khaliq and 28 others [1999 SCR 466].
In the case titled Muhammad Nazir v. Abdul Rashid & others [1998 SCR 248], during pendency of appeal before the Additional District Judge, the plaintiff moved an application for producing the additional evidence. The application was accepted and the case was remanded to the Trial Court for deciding the matter afresh in accordance with law. An appeal was filed in the High Court against the remand order. The appeal was accepted, whereupon an appeal was filed in this Court.
While dealing with the provision of Order XLI, Rule 27, C.P.C., it was resolved that the additional evidence cannot be allowed to a party in order to fill up the lacunas or omission or to patch up the weaker parts of its case. A party to the appeal may move the Court for additional evidence but it can be allowed if it is required by the Appellate Court itself on the basis of its on appreciation of evidence already on record. It was further observed that mere lapse or negligence either on the part of the appellant or his counsel cannot be recognized as substantial cause.
In the case titled Muhammad Siddique v. Abdul Khaliq and 28 others [1999 SCR 466], during the pendency of an appeal before the District Judge an application for production of additional evidence was moved which was accepted by District Judge, Kotli. The order was challenged by way of revision petition in the High Court. The High Court accepted the revision petition and set aside the order of District Judge, whereupon the matter came before this Court by way of petition for leave to appeal. While dealing with the scope of Rule 27 of Order XLI, C.P.C., this Court observed that the parties to an appeal are not entitled to adduce any additional evidence but the same can be allowed if the Court from whose decree an appeal is preferred has (i) refused to admit the evidence which ought to have been admitted or (ii) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce the judgment or for any other substantial cause under Order XLI, Rule 27 of Civil Procedure Code which is an exception to the principle that the Appellate Court cannot record fresh evidence.
In both the above-referred cases, the facts are distinguishable because the applications for additional evidence were moved in the first Appellate Court and the orders were challenged by way of revision petitions in the High Court while in the instant case the application for additional evidence was moved in the Trial Court. A revision petition was filed before the District Judge and order of the District Judge was challenged by way of writ petition in the High Court. The scope of revision petition is altogether different from that of writ petition.
4. While controverting the arguments, Ch. Muhammad Afzal, Advocate, counsel for the respondents, argued that the judgment of the High Court is perfectly legal. Although, all the evidence, which the parties want to produce must be produced at earlier stage however the documents which are of undoubted character and come from official record can be produced in evidence at a later stage under Order XIII, Rules 1 and 2 of C.P.C. As an additional evidence. The learned counsel submitted that documents were necessary for the just and fair decision of the case. The Trial Court illegally refused to produce the same. It was enjoined upon the District Judge that while hearing the revision petition he should have looked that the Trial Court has failed to exercise the jurisdiction vested in it. The learned District Judge also failed to exercise the jurisdiction vested in it under Section 115(1)(b) C.P.C., therefore, the High Court was justified in interfering in the matter under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 to rectify the errors committed by the Senior Civil Judge as well as the District Judge and the writ following has competently been issued. The learned counsel referred to the following cases, reported as Muhammad Ameen & 6 others v. Akbar Jan [PLJ 2006 SC (AJ&K) 27], Mst. Hajan Nawab Bibi v.
Additional District Judge, Lahore and 3 others [PLD 1993 Lahore 492], Muhammad Nawaz and another v. Additional District Judge, Sargodha and 11 others [1999 CLC 1142], Mst. Fazal Jan v.
Roshan Din and 2 others [PLD 1992 SC 811], Muhammad Ajaib v. Khalid Hussain [PLD 1995 AJK 5], Shoukat Usman v. United Bank Limited and 6 others [PLJ 2011 AJ&K 12] and Muhammad Afzal and 2 others v. Khush-hal and another [PLJ 2004 AJ&K 54].
In the case titled Muhammad Ameen & 6 others v. Mst. Akbar Jan [PLJ 2006 SC (AJ&K) 27] while dealing with the powers of the Courts under Order XIII, Rule 2, C.P.C., it was observed that there is no cavil with the proposition of law that the documents which are in possession and power of a party must be produced at the first hearing of the case, but if a party fails to do so it is not absolutely precluded from producing the same before the Court at a later stage, if good reason is given for that.
In the case titled Mst. Hajan Nawab Bibi v. Additional District Judge, Lahore & 3 others [PLD 1993 Lahore 492], one Hajan Nawab Bibi filed an application under Order XIII, Rule 2, C.P.C., for production of documents at a later stage. The application was accepted. The order was challenged by way of revision petition before the District Judge. The District Judge accepted the revision petition and set aside the order passed by the Trial Court. On writ petition, the High Court while dilating upon the scope of Constitutional jurisdiction concluded that a Court having jurisdiction can decide the matter rightly or wrongly and the mere fact that the decision was incorrect would not render it as without jurisdiction but if the judicial tribunal has relied on an inadmissible evidence or failed to properly apply its mind to questions of law and facts resulting in error apparent on the face of record, the High Court in exercise of powers under Article 199 of the Constitution could quash such decisions.
In the case titled Muhammad Nawaz & another v. Additional District Judge. Sargodha & 11 others [1999 CLC 1142] during the hearing of a suit in rebuttal of the evidence, a party tried to produce documentary evidence. The Trial Court dismissed the application. A revision petition was filed before the District Judge which was also dismissed by the District Judge. In writ jurisdiction, the High Court resolved that application for permission to produce additional evidence can be filed at any stage. The refusal by the Thai Court for production of additional evidence for the reason that the petitioner should have produced the same at the time of producing their affirmative evidence and could not be allowed to produce additional evidence in rebuttal at a later stage is not correct.
The view of the Trial Court was mistaken. The documents appear to be just and necessary for correct decision of the case and arpear to be of undoubted authenticity. The writ petition was accepted.
In the case titled Mst. Fazal Jan v. Roshan Din & 2 others [PLD 1992 SC 811] while hearing an anpeal, the Supreme Court observed that the case appears to be badly conducted. It was a fit case where the Appellate Court should have exercised power under Order XLI, Rule 27 of Civil Procedure Code for allowing to bring on record necessary documents without which the decision in the case is not possible.
In the case titled Muhammad Ajaib v. Khalid Hussain [PL.D 1995 AJ&K 51 it was observed by the Azad Jammu and Kashmir High Court that the bar contained in provisions of Order Vli, Rule 14 and Order XIII, Rule 1 of the Civil Procedure Code that all the documents be produced with the plaint at the time of first hearing is not absolute one. A document can be produced at later stage if good cause for production at later stage is shown and document is of undoubted character.
In the case titled Muhammad Afzal and 2 others v. Khush-hal & others [PLJ 2004 AJ&K 54] it was observed by the Azad Jammu and Kashmir High Court that although, it is the duty of the parties to produce all the documentary evidence at the earlier stage till the first hearing but the documents can be produced at a later stage under Order XIII, Rule 2, C.P.C., if a good cause is shown and documents are of undoubted authenticity.
In the case titled Shoukat Usman v. United Bank Limited & 6 others [PLJ 2011 AJ&K 12] it was observed by the Azad Jammu and Kashmir High Court that documents which were in possession of a party must be produced at first hearing of the case as has been laid down in Order XIII, Rule 1 of Civil Procedure Code, but if a party fails to do so it was not precluded from producing the same before the Court at a later stage, provided the Court is satisfied that the document is authentic and is not concocted, fabricated or prepared later and it was relevant and necessary for just decision of the case.
5. We have heard the learned counsel for the parties and perused the record. Two suits titled; Nazir Ahmed v. Riaz Ahmed and others and Javed Iqbal v. Nazir Ahmed and others in respect of suit land for perpetual injunction were filed in the Court of Senior Civil Judge Bhimber on 10th July, 1997 and 12th July, 1997 respectively. The evidence of both the parties was concluded and the case was fixed for final arguments when on 4th April, 2005, Javed Iqbal moved an application for filing the afore- mentioned copies of the documents in additional evidence. It will be useful to reproduce the application which is as under:- {{URDU TEXT}} ell ts JA12. Lk* ei+ so1 .11,)A4 Lolt Y14 =-? > 6U1-1iJiAl ,-411"
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J4) -1-1..91+ "d".19S ..)9-C Lo csa." (3141 A perusal of the application reveals that the case was fixed for final arguments when the plaintiff Javed Iqbal moved application wherein the only reason was given that he wants to file copies with the file which could not be inadvertently filed previously. It is not disclosed that what is the effect of filing or non-filing of these documents on the fate of the case or what is the relevancy of these documents with the controversy involved in the case. He wanted to file the copy of the decision of Commissioner, Mirpur dated 30th August, 2003; and the copy of the decision of Collector, Bhimber dated 7th April, 2000, whereas the suit was filed in 1997. The plaintiff-applicant only mentioned that he wants to file the copies of Jamabandi and Khasra-Girdawari. It is not mentioned that as to which year these pertain, what is the effect of non-production and why these documents are necessary to be produced in the additional evidence. Under Order XIII, Rule 1 of C.P.C., all the documents in the possession or power of the parties, on which they intend to rely and want to produce shall be produced at the first hearing of the suit. Under Rule 2 of Order XIII of C.P.C., the documentary evidence can be received at any subsequent stage of proceeding, if a good cause is shown to the satisfaction of the Court for non-production thereof. In a number of cases this Court has already held that documents which come from official custody and are part of official record can be allowed at a subsequent stage if, a good cause is shown by the party that why the documents could not be produced at earlier stage.
6. Here it may be observed that application for filing documents can be moved under Order XIII, Rule 2 of C.P.C., at a subsequent stage and not under Order XLI, Rule 27 of C.P.C. The additional evidence can be produced in the Appellate Court on the grounds enumerated therein that the parties to an appeal are entitled to adduce any additional evidence, if the Court from whose decree an veal is preferred has (i) refused to admit the evidence which ought to have been admitted or (ii) the Appellate Court requires any document to be produced or any witness to be examined to reach the just decision.
7. Under Order VII, Rule 14 of C.P.C., where a plaintiff sues upon a document in his possession or power he shall produce it in Court when the plaint is presented and file the document or a copy thereof to be filed with the plaint and all other documents upon which he relies as evidence in support of his claim. He shall enter such document in a list to be added or annexed to the plaint.
Under Rule 1 of Order XIII, of C.P.C., the parties shall produce at the first hearing of the suit all the documentary evidence of every description in their possession or power which they intend to rely and which has not already been filed in the Court. Under Rule 2 of Order XIII of C.P.C., the documents can be received at subsequent stage of proceedings, if a good cause is shown to the satisfaction of the Court for non-production thereof. This Court in the case reported as Muhammad Ameen and 6 others v. Mst. Akbar Jan [2005 CLC 1322] has held as under:- "There is no cavil with the proposition of law that the documents which are in possession and power of a party must be produced at the first hearing of the case. Although it can be said that a document, copy of which can be obtained from an office on an application, is within power of a party, but practically the documents are not in his power and contol A party needs to locate the office, file application for obtaining the copies of the same and then furnish it in the Court. A party relying on such document is expected to obtain a copy of such document well in time for production before the Court, but if the party fails tc do, it is not absolutely precluded from producing the same before the Court at a later stage. If good reason is given for that. The rule is not inflexible that it cannot be allowed at all. Even an Appellate Court may allow certified documents on showing good reasons. However, it varies from case to case depending upon the conduct of a party as to when such an indulgence can be allowed. If the Court is satisfied that the document is authentic, it is not concocted, fabricated, prepared later and that it was not in possession and power of the party and is relevant and necessary for just decision of the case, it can be allowed at any stage. The documents sought to be produced in this case are the certified copies of public record. Copies of which are obtained from the relevant authority of the Government. There can be no doubt about their authenticity and genuineness, however, their effect on the case only remains to be judged by the Court."
In the case titled Chief Engineer & another v. Anwar Begurn & 9 others [2009 SCR 199], this Court has observed as under:- "Rule 1 of Order XIII, C.P.C. Provides that all the documentary evidence in the possession of the parties or their power shall be produced at the first hearing. It is correct that the party who basis his suit on certain documents it shall file these documents with the plaint and other documents on which the party intends to rely shall be entered in the list filed with the plaint. There is an exception to rule 14 of Order VII, which is provided in rule 2 of Order XIII that documents can be provided at a later stage. Rule vests a discretion in the Court to receive the documents in evidence at a later stage, although, a condition has been imposed that good cause for non-production of documents at a later stage has to be shown."
In the case titled Muhammad Khaliq v. Tehsildar Settlement Mi?Pur and 4 others [2002 SCR 343] has observed as under:- "From the survey of the above-referred case-law it becomes clear that Order XIII, Rule 1 is enacted with a purpose that nobody should manufacture the evidence subsequently after filing the suit or written statement in the Court of law. Under Order XIII, Rule 2, the Court has been given ample powers to receive in evidence the genuine documents even if such documents were not produced at the first date of hearing by the relevant party alongwith the pleading. In a case titled The Lahore Improvement Trust v. Sh. Karamat All [PLD 1959 (W.P.) Lahore 597], referred to by the learned counsel for the respondents, the document which was refused to be received in evidence was a latter of the plaintiff addressed to the defendant whereas in the cases referred to by the learned counsel for the appellants the copies of revenue record were allowed to be received in evidence under Order XIII, Rule 2 of the Civil Procedure Code. From these authorities it becomes clear that the Courts were liberal in according permission to produce copies of official record. However they were very strict while dealing with private documents. From the report of these authorities it becomes clear that documents of suspicious and forged nature cannot be allowed to be brought on record, however any party cannot be penalized on the ground of delay in granting permission to such documents whose authenticity was above suspicious."
Similarly in the case titled Muhammad Zahoor Kausar v. Mst. Akbar Jan [2011 SCR 87] this Court has observed as under:- "Order XIII, Rule 1 of the Civil Procedure Code provides that all the documents on which the party relies, must be attached with the plaint. Rule 2 of the same Order provides that subsequent attachment of documents with the plaint although can be allowed but very strong reasons are required for the said permission by the Court."
8. The plaintiff-applicant has not relied upon the aforesaid documents in the plaint. The application is ambiguous. It is not clear from the application that the Jamabandi or Khasara-Girdawari, such the plaintiff/applicant wants to produce in evidence are pertaining to which year and what is the relevancy of these documents. Similarly the documents i.e. The decision of Collector, dated 7th April, 2000 and the decision of Commissioner, dated 30th August, 2003, were how relevant, what is their relevancy and what is their bearing on the fate of the case, has not been disclosed by the plaintiff. Such a vague application cannot be accepted particularly, when the applicant/plaintiff has not disclosed any reason that why he failed to bring on record the said documents in due course of time. Mere inadvertence cannot be a ground for allowing the document at a latter stage.
9. Revisional powers under Section 115 of C.P.C. Can be exercised by a revisional Court if from the perusal of record of any case, which has been decided by any Court subordinate to such Court, and where no appeal lies and such Court appears to have exercised the jurisdiction not vested in it by law or failed to exercise the jurisdiction so vested or acted in the exercise of the jurisdiction illegally or with material irregularity but where the subordinate Court has exercised the jurisdiction vested in it in a lawful manner and there is no material irregularity in the case decided, the revisional powers cannot be exercised. In a case titled Tariq Mehmood v. The Contractor Ahmed Din & 4 others [2009 SCR 294] it was held as under:- "Section 115, C.P.C. Applies to the cases where the lower Court has illegally assumed jurisdiction, irregularly exercised or refused to exercise the jurisdiction vested in it or committed an error of law.
The power vested in the High Court under Section 115. C.P.C. Is purely is discretionary one and can be exercised on the principles upon which such discretionary orders are passed. While exercising revisional jurisdiction if the High Court comes to the conclusion that the lower Court has exercised such jurisdiction which is not vested in it by law or has failed to exercise or declined to assume the jurisdiction vested in it under law or exercised discretion in an illegal manner or has adapted such procedure the result of which puts a party in an advantageous position as against the other, then, the revisional powers must be exercised. If it is of the opinion that no violation of the above- mentioned matters is on record then it shall decline tc exercise the revisional jurisdiction."
10. The Trial Court committed no illegality while dismissing the application for producing copies of documents in additional evidence, therefore the District Judge was right in declining the exercise of revisional powers under Section 115 of C.P.C.
11. Under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the High Court has power to make an order on the application of an aggrieved person directing a person performing functions in connection with the affairs of AJ&K or local authorities to refrain from doing that which he is not permitted by law to do or to do that which he is required by law to do. Of course, a direction can be issued by the High Court to the Courts or Tribunals subordinate to it to do that which they are required by law to do. It is the duty of the Trial Court to decide the application under Order XIII, Rules 1 and 2 of Civil Procedure Code, for allowing or disallowing an application for bringing on record the documentary evidence and the District Judge while exercising powers under Section 115, C.P.C., is duty bound to look into the case decided by the lower Court whether the lower Court has exercised the jurisdiction vested in such Court in a lawful manner or not. If the 'High Court while exercising Constitutional powers vested in it under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, reaches to the conclusion that the Trial Court or District Judge while exercising revisional jurisdiction has failed to exercise powers vested in it under relevant provision of law and order is against the legal provision, then a writ of mandamus can be issued to such Court but while exercising Constitutional jurisdiction the High Court cannot exercise those powers which are vested in it as an Appellate Court. There is a marked distinction between the powers vested in the High Court under Section 44 in the writ jurisdiction as a Constitutional Court and powers vested in it as a Court of appeal. The High Court cannot sit as an Appellate Court on the decision of lower Court in Constitutional jurisdiction. What is necessary for issuance of writ is that an order impugned before the High Court by way of writ petition is against the legal provision. This Court in the case titled Ghulam Mustafa v. Azad Government & 2 others [1996 SCR 8] observed as under:- "7. At the very out set it may be pointed out that there is a marked distinction between the jurisdiction vested in a Civil Court, while exercising its powers as a Court of appeal and the jurisdiction exercised by the High Court in writ jurisdiction. The High Court while exercising the writ jurisdiction cannot sit upon the judgments of subordinate Courts or local authorities or Tribunals as a Court of appeal. Even the illegal orders or judgments passed by the subordinate Courts or Local authorities or Tribunals cannot be set aside by the High Court while exercising its powers in writ jurisdiction........ "
In another case titled Muhammad Rasib v. Mst. Maqsood Begum and 17 others [2011 SCR 59] it was observed as under:- "Writ jurisdiction of the High Court is regulated by Article 44 of the AJ&K Interim Constitution Act, 1974, which according to its phraseology, at the very outset provides that a writ petition can only be filed if there is no alternate remedy available to an applicant as has been handed down in umpteen cases so far by the superior Courts and leaves no room for the High Court to entertain a writ petition where it appears from the record that the controversy brought before the Courts is one of civil nature, competently to be decided by the Civil Court or all within the jurisdiction of a special Court or Tribunal with specific backing of some codal provisions."
12. The High Court has accepted the writ petition and provided an opportunity to the plaintiff for producing the document in evidence in the interest of justice without assigning any reason as to what sort of illegality has been committed by the Trial Court and the District Judge.
The result of above discussion is that this appeal is accepted. The judgment of the High Court is set aside. Resultantly the writ petition filed by the respondent herein is dismissed.